October 5, 2018

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It’s a familiar story: A candidate for president loses the popular vote, is still selected by the Electoral College, and nominates judges to federal courts who reverse groundbreaking civil-rights laws.

It happened before, starting in 1876. By the end of 1877, Rutherford B. Hayes–appointed federal judges were presiding over the end of Reconstruction. Jim Crow segregation came back in full force, the Klan rose again with no legal challenge, and an era of lynching exploded across the South and beyond.

More than 140 years later, the potential confirmation of Brett Kavanaugh to the Supreme Court threatens a very similar reversal of so many victories: in the struggles for women’s rights, against racism, to limit the power of corporations, for protection of the environment, against torture and mass surveillance, for the rights of immigrants and refugees, and so much more.

The confirmation process has revealed to the whole country, indeed the whole world, the reality of sexual abuse and how it impacts—or fails to impact—access to the highest levels of US power. A wide range of movements are in the streets, in the Senate, and in federal buildings across the country saying no more to the pervasive legacy of attacks on women going unreported and their attackers remaining unaccountable.

These are the same movements already working every day to challenge the three intersecting evils that Dr. Martin Luther King Jr. taught us all about: racism, poverty, and militarism. Many of those movements were shaped by the end of Reconstruction generations ago, and brought into the 21st century by adding climate-destruction and gender lenses.

In the decades since Dr. King, movements have continued to rise to challenge those evils and fight for the other world, the different world, that we know is possible. And often—not always, certainly, not equally, but often—it’s been the courts that have provided some modicum of protection to those most impacted by and those fighting against those evils.

Current Issue

Judge Kavanaugh’s rulings on the DC circuit court show just how threatening a Supreme Court Justice Kavanaugh would be to this lifeline, to all those fighting for a better world. Such an appointment would be an assault on the Constitution, an assault on the Court, and an assault on justice.

It’s not a guess, or a supposition—he’s proved it in his rulings during his dozen years as a DC circuit-court judge. He’s fine with torture and mass surveillance; cares more about corporations than about workers or the environment; champions untrammeled gun “rights”; and thinks that presidential power trumps the authority of Congress, the courts, or anyone else.

In one instance, the Obama administration blocked a voter-ID law in South Carolina because it violated the Voting Rights Act by threatening to prevent tens of thousands of people of color from voting. Judge Kavanaugh upheld the law, ruling it was “not discriminatory.”

In a decision on the mass surveillance of Americans carried out by the National Security Agency, Kavanaugh ruled that “critical national security need outweighs the impact on privacy occasioned by this [NSA] program.”

Beyond his own alleged involvement with sexual assault, Kavanaugh continues to use his judicial power to impose his extremist attack on women’s rights. He infamously tried to deny a teenager being held in US immigration custody her right to a legal abortion, arguing instead for the government’s right to “refrain from facilitating” such a procedure.

His decisions favor corporate power over that of workers and consumers in rulings that aim to overturn the authority of federal agencies, as well as in anti-union decisions such as his ruling that undocumented workers don’t count as employees under the National Labor Relations Act.

And he clearly thinks that presidents are above the law. In one ruling, he wrote that the president is obligated to abide by the constitutional requirement to enforce the law—“unless the President deems the law unconstitutional, in which event the President can decline to follow the statute until a final court order says otherwise.”

This is all unacceptable. We must fight this nomination in every way we can. We must voice our moral dissent.

If Kavanaugh is seated despite the dangers he represents, then we must mobilize like never before, this year and again in 2020, to vote out extremists who threaten our rights. Abolitionists didn’t relent after the Dred Scott decision. The end of Reconstruction didn’t mean an end to the fight against racism.

A potential Supreme Court Justice Kavanaugh does not end the struggle for women’s rights, or for any other kind of justice. We must continue that same fight.

Phyllis BennisPhyllis Bennis is a fellow of the Institute for Policy Studies and serves on the board of Jewish Voice for Peace. Her most recent book is the seventh updated edition of Understanding the Palestinian-Israeli Conflict: A Primer.

Rev. Dr. William J. Barber IIThe Rev. Dr. William J. Barber II is national president and senior lecturer of Repairers of the Breach. His latest book is The Third Reconstruction: How A Moral Movement is Overcoming the Politics of Division and Fear.